In the event that a limited liability company partner is dismissed from the partnership, the TCC stipulates that the relevant partner’s departure from the partnership
In order to prevent a punitive approach, the Company has stipulated that the departing shareholder shall be paid a separation fund equivalent to the actual value of his/her capital share.
In order to determine the separation fund, an interim balance sheet must be prepared by the managers of the limited liability company. As a matter of fact, in the preamble of the relevant provision, it is stated that the expression “corresponding to the actual value” refers to at least the “balance sheet value” of the shares. However, it should be emphasized at this point that, although the determination of the separation fund will be determined according to the interim balance sheet to be prepared by the managers of the partnership, it is possible for the shareholders to object to the amount of this fund at any time. Accordingly, the relevant shareholder may request the redetermination of the amount of the aforementioned separation fund by filing a lawsuit with the commercial court of first instance where the company is located.
The TCC further regulates when the separation fund becomes due and payable. Accordingly, in order for the separation fund to become due, the shareholder must firstly have left the partnership, since the separation fund shall not become due unless a general assembly resolution is adopted or the dismissal lawsuit filed by the partnership is finalized. In addition, the severance payment becomes due upon the dissolution of the partnership if (i) the partnership has an available equity, (ii) the dismissed person’s shares in the share capital are transferred, or (iii) the partnership has reduced its share capital.
However, we would like to emphasize that the unpaid portion of the separation fund to the departing shareholder constitutes a receivable against the partnership, which comes after all creditors. The due date of the unpaid portion of the separation fund starts with the determination of the amount of available equity in the annual report; however, if the equity of the partnership is insufficient to pay the separation fund of the departing partner, the share capital of the partnership must be reduced and the necessary payment must be made to the departing partner in this way
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